From the moment Roe v. Wade came down from the gavel of the nine gods to the lives of our unworthy peasantry, social conservatives and the religious right have been debating tactics to achieve the impossible:
Overturning a 7 to 2 Supreme Court decision.
It’s a task not many activist movements have been able to pull off. First, the mantra was appointing new justices to overturn it. Lawyers and strategists tried to find a way for Congress and the President to go around it. Amending the Constitution was placed on the table. How was the pro-life movement going to push back against the progressive achievements of the Warren-Burger Court in a world where federal judges serve for life?
The pro-life movement, since 1973, has essentially taken a strategy of a little of everything. Ronald Reagan and both Bushes were propelled to the Republican nomination with the full weight of the evangelical political machine. Evangelist superstars like Pat Robertson and Jerry Falwell called down fire and brimstone on the left while mobilizing some of the biggest get out the vote operations in history.
The cultural wave of nostalgic conservatism swept America, Britain, and most of the developed world, proving that the 60’s and 70’s would not go unreacted against. Ronald Reagan appointed four Supreme Court justices in the name of the pro-life movement’s goal of stacking the Supreme Court.
The results of this wave, like the milder Nixon-era conservative movement on the Court before that, were mixed.
Recall the makeup of the Burger Court in 1973, six Republican nominees and three Democratic nominees. One of each party dissented from the majority in Roe, meaning thirty-three percent of Democratic Supreme Court nominees opposed the decision and seventeen percent of Republican nominees opposed the decision.
But of course, Reagan had to appoint well-meaning federal judges in the absence of doing virtually anything else for the social conservatives whose influence led to his nomination. Sandra Day O’Connor went on to author the Court’s majority opinion in Casey v. Planned Parenthood of Southeastern Pennsylvania, setting the pro-life movement back at least twenty years in 1992. In it, this Reagan nominee’s logic disturbed not just the pro-life community, but anyone with a desire for logical jurisprudence.
“Liberty finds no refuge in the jurisprudence of doubt.”
Ergo, even if Roe v. Wade was decided wrongly, we won’t change that now because change is bad, even when you change from something bad to something good. Sameness is better in itself.
As heavy-handed as my criticism can be, I have no intention of disrespecting Reagan or his legacy. He was well-intentioned and, on certain issues, namely economics and foreign policy, he focused his policy efforts and made great strides. He was mediocre at getting things done in Congress, but he did his best to dial back some of the federal machinery that had accumulated since the New Deal.
But on social policy, I just have to say it.
His good intentions on the pro-life issue didn’t work. Stacking the Supreme Court didn’t work. You don’t change a nation’s jurisprudence by picking a couple of hot button issues and nominating people who will hopefully vote with you on those issues. You change a nation’s jurisprudence by nominating people who think consistently and have a track record of the level-headed application of justice.
The pro-life movement has a future, but if it wants to discover that future, it has to become more than a cheap afterthought of adding a few turnout points to mediocre Republicans in the general election after trying and failing to have any relevance in the nomination process.
So when any Republican candidate, much less Donald Trump, tries to tap into the tired trope of tossing a Supreme Court appointment to the social conservatives to mobilize their GOTV, I don’t find it endearing.
I find it frankly patronizing.